Tuesday, June 28, 2005

Blogging the Scorecard: Which was the "Best" Circuit?

[post updated and bumped up]

The 11th and the 6th, according to the scorecard produced by Goldstein & Howe, appellate boutique to the stars - or to the star court of the Federal system, the Supreme one.

The new scorecard, available now in a glossy but B&W pdf format, will surely be misinterpreted to say a few things it doesn't.

The circuits with a 1-0 report (1 case taken and affirmed, 0 "other") will be reported as "in-tune" with the Supreme Court, may be cited as "not Bad," and will otherwise come in for undue praise. C'mon, folks. This was one out of one. The sample size overall is small; the Supreme Court has not heard 100 cases in a long time. But one for one? This is not statistically significant.

The circuits that did best- those with fewer than twice as many "other" results (reversals, remands with instruction, disposal by means other than affirmances; this includes the very cool and known-by-initials D-I-G result, "Dismissed as Improvidently Granted," apparently known as "DIGging a case" by those who know) as they have affirmances will be hailed and feted.

Okay, the 6th and 11th circuits are pretty sharp. I like citing to them, myself.

But the sure thing is that the 9th will be nailed, and the results taken for other purposes (arguing for a split, etc.) far beyond the actual significance of the cases. Why?

The Ninth was the "most reversed." It also was the "most granted" for review; lots of cases come out of the (large, very populous, legally cutting-edge) Ninth Circuit. It's got California, for goodness' sake. The Supreme Court "others" more than it affirms. Sometimes the court below just got it wrong; then reversal without an opinion may be merited.

Sometimes a lower court will have a disagreement with other courts; then somebody's got to lose if the Supreme Court comes down one way or the other. The Ninth Circuit's losses have included this sort of thing, a circuit split that has to be resolved _one_ way or another. Circuits that generate lots of cases can produce lots of splits with other circuits; I could show you the figures. If you have a populous circuit and a sparsely populated circuit, guess which one will produce the most cases in a year? Which one is the latest circuit-splitting decision therefore likely to come from?

Sometimes, of course, the Supreme Court takes the bit in its teeth. Look at Grokster, just come down. The Supreme Court is carving new terrain. It's not unpredictable, or unpredicted, but the Circuits don't predict. The Circuits do their level best to apply the law, as handed down from on high, to the facts before them. The Supreme Court is not a general error-checker, most of its jurisdiction is discretionary (they can almost always choose to take a case or not, thanks to Congress' choices in setting its appellate and cert. jurisdiction).

Sometimes the Supreme Court makes new law. That is, it either fills in an area of common law previously undecided, or tackles a gnawing question of Constitutional law never before addressed, or it revisits an old but wrong decision.

When that happens, the Circuits tend to be "other"ed. Not affirmed, mostly reversed and told that the rules of the game have changed.

So what do we do with the Ninth?

Well, whether we split it or not, we should give them an award.

How about, "Most innovative"?

[update: There's a corrected scorecard now up, see the post titled Statistics, dated 3:31 p.m. at SCOTUS blog. It now shows the 11th and 6th, as I said, doing very well, with the 7th and Federal Circuits holding an undeserved tie for first place due to a 1-1 record. Also of interest in that post, links to the voting relationships, and the remaining numbers. The true "in-tune" Circuits are the 11th and 6th, with a 5-5 and 4-7 record respectively. Highly impressive; your opinions or at least judgments have been persuasive or ahead of the curve. To the 2nd and 10th Circuits, which had all of their appealed judgments reversed, vacated, or otherwise not affirmed, better luck next time. 0-2 and 0-3 are not really very bad; this is mostly luck of the draw we're talking here.]

For earlier coverage, see their First Draft of End-of-Term statistics. In the original statistics post, they gave credit to the Contributor who compiled the thing. That information is now missing. Offered: a reward to whoever knows who that was, if they post or email her name here. We wish to honor her with burnt sacrifice. The reward is that this blawg will show the fink, I mean winner, great honor and esteem, and possibly write a glowing review of them/their blog.]


At 11:45 PM, June 28, 2005, Anonymous shell said...

Ah yes. Us Californians (don't really care about other states associated with the 9th, because CA is the most important) think of ourselves as cutting-edge legal beagles. That's why the 9th is so progressive *haughty head tilt*

*Disclaimer: The above is a parody of Californian legal pride. It may or may not be actual depiction of the real people who reside in the said state.

At 1:28 AM, June 30, 2005, Anonymous shell said...

BTW, I have added you to my blogroll, and you're now on my First Degree Circle.

I'm very much stimulated by your interesting rants/intellectual curiosity, and am looking forward to future discussions/debates. Thanks for keeping it civilized!

At 7:04 AM, July 06, 2005, Blogger Eh Nonymous said...

awww... that's so *sweet*.

Hey, wait a minute. No, I'm not, I seem to be under "Sunday reading," rather than "First Degree Circle"! Hey! I've been robbed!

(Or is Sunday reading a higher level of attainment than FDC? Oh, the intricacies. Do I prefer to be in the circle among firsts but equals, or perused on a lazy Sunday? O, the perplexity!)


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